WILLIAM TRACHMAN AND MICHAEL MCCOY: What’s Spookier: ‘Ghost Guns’ Or Unchecked Agency Power?

With Halloween around the corner, anti-gun groups, federal bureaucrats and big city mayors would have you believe that the scariest thing on today’s streets are so-called “ghost guns,” a.k.a. firearms manufactured at home. What they won’t mention in their talking points, however, is the four centuries of historic tradition around this practice and the lack of authority that regulators have to ban these guns without action from Congress.

Consequently, attempts to regulate homemade firearms, in spite of these facts, are far spookier and frankly more dangerous to our republican system of government than any gun on the street.

This all started in 2022, when the agency charged with firearms regulation issued a new rule to regulate firearm parts kits. Driven largely by anti-gunners’ bewilderment that unserialized firearms could become the norm, President Joe Biden and Vice President Kamala Harris bypassed Congress and pushed the ban. But a sticky problem persisted: the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) lacked the statutory authority to initiate such a regulation.

Today, the issue sits in the hands of the Supreme Court, after the Harris-Biden administration lost twice in the lower courts.

Earlier this month, we made the case before the justices that this rule would turn many Americans — like our client, former law enforcement officer Jennifer VanDerStok — into criminals for the first time, for making their own firearms at home.

Unfortunately, the battle in the court of public opinion doesn’t quite map the battle in the courtroom. Whether the Harris-Biden ATF is allowed to expansively reinterpret its own power is a different question from whether the sale of parts kits is a good or bad thing, in the abstract. And the federal government has intentionally and fully adopted the pejorative term “ghost guns” for the types of home-made firearms that hobbyists create only after extensive milling, drilling and other efforts.

As is common, the justices of the Supreme Court asked plenty of questions of both advocates before them. Justice Samuel Alito, for instance, asked whether a pen and a notepad were the same as a grocery list, given that the two items were just separated precursors to the list itself. And in another example, he asked if eggs, ham, peppers and onions counted as a Western Omelet, even before they were cooked. Justice Brett Kavanaugh expressed concerns that the ATF was criminalizing people who merely possessed something that was legal for decades before 2022.

But others were not so skeptical of the government’s power to define itself into new regulatory authority. Justice Amy Coney Barrett, for instance, seemed to suggest that maybe the Western Omelet ingredients would count as the fully-formed dish, if they came in a Hello Fresh package. And Justice Sonia Sotomayor, for her part, seemed to think it was clear that the ATF could wield its authority to regulate parts kits.

She noted that Congress had given the ATF authority over starter guns, like those used to tee off footraces. If the ATF has authority over those, surely, she suggested, it must have authority over unfinished parts kits.

The solicitor general of the United States, the chief advocate for the federal government, seemed to emphasize not so much the legal questions in the case, but the purported practical outcome of a decision affirming the lower courts. In her rebuttal argument, she suggested that every gun in the United States might become a “ghost gun” if the justices ruled against her — and that criminals were buying home-made kits in order to dodge police detection. But do you recall that being the case in 2022? Hardly.

The solicitor general also tried to emphasize an argument that criminals use home-made firearms because they don’t typically have serial numbers. Once again, this is not truly a legal argument, but a policy argument that is best addressed by Congress. In any event, the claim is dubious factually. The truth is that criminals are exponentially more likely to use a stolen firearm or a regularly-purchased firearm, and simply grind down the serial number.

That is likely because home-made firearms require both skill and time to make. Of course, it is impossible to read the “tea leaves” of the justices’ questions from oral argument. Indeed, in many cases, justices may ask questions that appear probing or even aggressive of an advocate in order to give that advocate an opportunity to persuade colleagues who are on the fence. We likely won’t know the outcome of VanDerStok until early 2025, when the court issues its opinion.

But in this context, one danger is that the case metastasizes into an argument over whether home-made firearms are good or bad, as a policy matter. The truth is that Americans, before 2022, always had the right to create their own firearms in their basement, if they so chose.

But even setting that aside, the question of “who decides” is one that is fundamental to our structure of government. It is Congress that makes the laws, not Vice President Kamala Harris, President Joe Biden or their loyal bureaucrats running federal agencies.

Nothing is spookier than upsetting that delicate balance.

William E. Trachman is the General Counsel of Mountain States Legal Foundation and a former Deputy Assistant Secretary for Civil Rights in the U.S. Department of Education. Michael McCoy is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms and a former federal prosecutor.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

(Featured Image Media Credit: Screen Capture/CSPAN)